The United States Court of Appeals for the Fourth Circuit (“Federal Appellate Court”), in its opinion dated July 24, 2021, stated: “The district court dismissed the FTCA claim because Pledger did not secure a certification from a medical expert before filing suit, as required by West Virginia law. See W. Va. Code § 55-7B-6. This was in error. As two of our sister circuits have concluded, state-law certification requirements like West Virginia’s are inconsistent with the Federal Rules of Civil Procedure, and thus displaced by those rules in federal court. Accordingly, we reverse the district court’s dismissal of Pledger’s FTCA claim.”
West Virginia Medical Professional Liability Act (MPLA)
Under the MPLA, plaintiffs bringing medical malpractice or negligence claims under West Virginia law generally must serve on each named provider, at least thirty days before filing suit, a notice of the claim, a statement of the theory of liability, a list of other providers and health care facilities also being notified, and a “screening certificate of merit” by a qualifying health care provider evaluating the claim. W. Va. Code § 55-7B-6(b).
The U.S. district court concluded that the plaintiff’s FTCA claim against the United States – premised, as per the FTCA, on a violation of West Virginia medical negligence law – was subject to West Virginia’s pre-suit notice and certification requirement for medical negligence cases. W. Va. Code § 55-7B-6 (2003). In order to file and maintain a suit, in other words, plaintiffs raising medical liability claims under West Virginia law must first obtain and present expert support for their claims.
About half of all states similarly demand that medical malpractice plaintiffs secure some sort of early support from a qualifying expert.
The Federal Appellate Court stated: “There is now a growing consensus that certificate requirements like West Virginia’s do not govern actions in federal court, because they conflict with and are thus supplanted by the Federal Rules of Civil Procedure … We begin with the fundamental and uncontroversial point that the Federal Rules of Civil Procedure generally govern all civil actions in federal court. See Fed. R. Civ. P. 1. Because Pledger has brought an FTCA claim in federal court, the Federal Rules apply. Indeed, the originally enacted version of the FTCA expressly instructed courts to apply the Federal Rules, and later versions omitted that clarification only because Congress deemed it “unnecessary.””
“We first ask whether the Federal Rules “answer the question in dispute” … here, whether a medical malpractice plaintiff must provide presuit expert support for his claim. If the Federal Rules do answer that question, then they govern, notwithstanding West Virginia’s law – unless, at step two of the analysis, we find the relevant Federal Rules invalid under the Constitution or the Rules Enabling Act … But if there is a valid Federal Rule that answers the “same question” as the MPLA, then our work is done, and we apply the Federal Rules without wading into the “murky waters” of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and its distinct choice-of-law rules.”
“The MPLA’s certificate requirement thus represents an additional hurdle for plaintiffs. In fact, in West Virginia state court, failure to comply with the MPLA’s pre-suit procedures – in whole or in part – is grounds for dismissal under the state’s equivalent of Rule 12.”
“[W]e find that it is “impossible to reconcile” certificate requirements like West Virginia’s with the “requirements of the Federal Rules of Civil Procedure” … And contrary to the suggestion of the United States, it is no answer that it would be possible for a claimant to “comply with both” the Federal Rules and West Virginia law, satisfying the more generous standards of the Federal Rules and then adding something extra for the MPLA. Under Shady Grove, what matters is whether the “one-size-fits-all formula” for filing and maintaining a complaint set out by the Federal Rules is enough to “provide an answer” to the question at issue: whether a plaintiff must obtain an expert certificate of merit before he may file and maintain a medical malpractice suit … Here, we conclude that the Federal Rules indeed “answer the question in dispute” … West Virginia’s MPLA cannot apply to Pledger’s federal-court action under step one of the Shady Grove framework.”
The Federal Appellate Court concluded: “we hold that the MPLA’s pre-dispute certificate requirement, W. Va. Code § 55-7B-6, is displaced by the Federal Rules under Shady Grove, and therefore does not apply to Pledger’s federal-court FTCA claim. Because the district court dismissed that claim on the erroneous assumption that the state statutory requirement applied, we reverse that dismissal and remand the claim for further proceedings consistent with this opinion.”
Source Pledger v. Lynch, No. 18-2213.
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